Excerpt:.....report as well as the affidavit by the petitioners' relation sellappa and the memo filed by the petitioners' pleader in the lower court. it may very well be and is proper that a case which has been started during the working hours of the day, may be prolonged after office hours under exceptional conditions but that would not justify a court in initiating a trial or enquiry long after 5 p. the words 'magistrate of the first class 'were added when the code was amended in 1898. therefore the trial court in the present case being a magistrate of the second class, an appeal will lie not only on the question of sentence but also on the merits of the case as well. i am in perfect agreement with the view enunciated in these pronouncements, even though the result of the setting aside,..........the petitioners were in a very terrified and panic stricken state and did not, in fact, want to plead guilty but claimed to be tried. in criminal revision case no. 558 also, the same grounds are alleged, viz, that the 57 petitioners were taken in a lorry at night to the nammakkal police station; that they were all kept under police custody; that at about 5 p.m. on 1st april, 1947, were made to sit in the open space on the eastern side of the compound of the magistrate's court at namakkal and that they were not allowed to talk to each other being under strict police guard. at about 8-30 p.m. the magistrate took up the enquiry, examined the few witnesses for the prosecution and recorded the accuseds' plea. on account of the fear and panic in the minds of the petitioners, they could not.....

Judgment:ORDER

Govinda Menon, J.

1. It is more convenient to deal with these cases by one and the same judgment as the facts are, to a large extent, interrelated and four petitioners are common in both. In Crl. R.C. No. 557, the petitioners have been convicted of the offence of assaulting a public servant in the discharge of his duties, an offence punishable under Section 353 of the Indian Penal Code and the first petitioner is sentenced to rigorous imprisonment for five months and the others to. rigorous imprisonment for four months. In Crl. R.C. No. 558, the 57 petitioners of whom petitioners 1 to 4 are the same as in the previous case, have been convicted of an offence under Section 147, Indian Penal Code and sentenced to rigorous imprisonment for four months each. In the case of petitioners who are common to both, the sentences are to run concurrently.

2. The circumstances under which the petitioners were convicted are rather unusual and peculiar. In Crl. R.C. No. 557, the first information report dated 31st March, 1947, and the charge sheet were filed before the Stationary Sub-Magistrate, Namakkal, on 1st April, 1947, and the petitioners were produced from police custody in the Sub-Magistrate's Court late in the same evening, the trial started after 5 P.M. and ended at about 9 p.m. According to the first information report, the offence took place on 31st March, 1947, at 6 p.m. The arrest of the petitioners was in the early hours of the morning of 1st April, 1947, at the village of Siviyam-palayam and they were taken to the police station at Namakkal immediately there-after. As is seen from the judgment of the trial Court, the filing of the charge sheet the apprehension of the accused, the commencement of the trial, the close of the trial and the passing of sentence were all on the same day i.e., on 1st April, 1947. According to the same judgment the petitioners pleaded guilty of the offence and were convicted on their own plea.

3. In revision it is contended that the undue haste and precipitancy with which the entire proceedings were gone through resulted in a serious miscarriage of justice as the accused had no opportunity to defend by availing the assistance of counsel. Therefore, the argument is that the trial was improper and irregular, the plea of guilty was not the result of voluntary volition on their part but that the petitioners were in a very terrified and panic stricken state and did not, in fact, want to plead guilty but claimed to be tried. In Criminal Revision Case No. 558 also, the same grounds are alleged, viz, that the 57 petitioners were taken in a lorry at night to the Nammakkal police station; that they were all kept under police custody; that at about 5 P.M. on 1st April, 1947, were made to sit in the open space on the eastern side of the compound of the Magistrate's Court at Namakkal and that they were not allowed to talk to each other being under strict police guard. At about 8-30 P.M. the Magistrate took up the enquiry, examined the few witnesses for the prosecution and recorded the accuseds' plea. On account of the fear and panic in the minds of the petitioners, they could not even collect their thoughts and give coherent answers. The learned Counsel further contends that the inquiry after Court hours, without the consent of the petitioners is illegal and irregular and has caused serious prejudice and grave miscarriage of justice.

4. The learned Sub-Divisional Magistrate, Nammakkal, who heard the appeals in both these cases, states in his judgment that the trial was commenced immediately after the accused were produced before Court at the instance of the prosecution to whom the case was very important and urgent and as such the prosecution were very anxious to get on with the enquiry without any delay. The learned Magistrate, then proceeds to state that the petitioners, evidently had no objection to the course adopted as they did not want further time or ask for any adjournment. Nevertheless it is not stated that the petitioners prayed for the trial to be taken up immediately. Mere silence or acquiescence on the part of the petitioners in those circumstances, has been interpreted by the Magistrate as the consent of the petitioners for holding the trial during these out of Court hours. The learned Magistrate also holds that the petitioners had no time to consult or engage counsel.

5. In view of the memo filed by the pleader for the petitioners in Criminal Revision Case No. 557 before the lower appellate Court and the affidavit of one Sellappa Goundan, I thought it advisable to call for a report from the trial Court as to what actually happened. But unfortunately the trial Magistrate had been transferred and his successor was not able to state anything personally but submitted a report received by the Magistrate from the Inspector of Police, Nammakkal, about the circumstances attending the arrest of the accused. I have carefully perused the police report as well as the affidavit by the petitioners' relation Sellappa and the memo filed by the petitioners' pleader in the lower Court. It seems to me that the procedure adopted by the trial Magistrate was unusual and irregular.... The police report does not definitely state the exact time when the petitioners were produced before the trial Magistrate and what time was taken for the enquiry; but from the judgment of the lower appellate Court one can infer that the circumstances attending the arrest and the trial are not very different from what is stated by the petitioners' advocate and in the affidavit filed in the lower appellate Court. It may be safely concluded that from the early hours of the morning of the 1st April, 1947, the petitioners in both these cases, were in police custody at the Namakkal police station, that they were produced before the Court after Court hours, the trial commenced thereafter and was closed at about 9 p.m. Granting that the petitioners did not ask for time to engage counsel or protest against the undue haste with which the proceedings were pushed through, I am unable to hold that the action of the trial Court, is, in any way justified. Courts of Criminal law are expected to function without any semblance of police or prosecution interference and even if, as the learned appellate Magistrate finds, the case was important and urgent to the prosecution, the sub-Magistrate was not within his powers in beginning the trial after Court hours. Whether the accused persons protested or not is not a matter which is material. At any rate, for the purpose of the present case I am prpared to take it that the accused did not ask for time to engage counsel or protest against the hasty manner in which the trial was proceeded with. Even then, it seems to me that the trial should not have been conducted in the early part of the night as has now been done. The offence was a serious one and the accused persons, 57 in number, were all of them villagers arrested the previous night and brought to the police station immediately. Except under very abnormal and unusual circumstances, no Court is justified in taking up and proceeding with the trial of a criminal case after the usual Court hours. Lawyers are not expected to attend Court at such unusual times and parties or witnesses cannot be compelled apart from their express desire, to attend Court out of normal hours. It may very well be and is proper that a case which has been started during the working hours of the day, may be prolonged after office hours under exceptional conditions but that would not justify a Court in initiating a trial or enquiry long after 5 p.m. and continuing the same at a stretch till 9 p.m.

6. Such being the case, the entire proceedings have been vitiated. The accused have not had a fair or proper trial and in these circumstances the plea of guilty cannot be accepted at its face value. Two questions of law, then, arise on these conclusions and they are, whether the petitioners can go behind their plea of guilty and, if that is to be allowed, a retrial of the cases is necessary at all.

7. On the first point Section 412, Criminal Procedure Code, is the provision of law dealing with it. It runs as follows:

Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted by a Court of Session or any Presidency Magistrate or Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.

In the present Code the prohibition against an appeal except as regards the extent or legality of the sentence when an accused is convicted on his own plea of guilty, is res-tricted to the conviction by a Court of Session, Presidency Magistrate or a Magistrate of the first class. In the Code of 1882, this prohibition was only to a con-viction by a Court of Session or a Presidency Magistrate. The words ' Magistrate of the first class ' were added when the Code was amended in 1898. Therefore the trial Court in the present case being a Magistrate of the second class, an appeal will lie not only on the question of sentence but also on the merits of the case as well. The appellate Court has ample power to go into the evidence and find out whether the proper procedure has been followed and whether the appellants had a fair and proper trial.

8. I have been able to find out authority also from reported decisions fortifying the above view of mine. In Queen Empress v. Kalu Dosan I.L.R. (1896) Bom. 759, Parsons and Ranade, JJ., have held that where the accused pleaded guilty to an offence before a Magistrate of the first class and was sentenced by him, the Sessions Judge was competent, on appeal by the accused, to deal with the whole appeal both on facts and on law. The section as it stood then, exempted a conviction by a Court of Session or a Presidency Magistrate alone and not by a First Class Magistrate. Therefore there is clear authority for the position that, on the section as it stands now, in the absence of a second class Magistrate being included in the category of Courts from which no appeal lies in a case of conviction on a plea of guilty, it is open to the appellate Court and to this Court in revision to go into the matter both on facts and law and find out whether the conviction was right or not. In Ali Hussain v. Emperor A.I.R. 1930 Rang. 349 : 128 I.C. 854, it has been laid down that the High Court in revision is not bound by Section 412, Criminal Procedure Code, but may examine the record for the purpose of seeing whether the applicants have had a fair trial and whether their plea of guilty was based on a proper conception of the facts.

9. To the same effect is the decision in Chunilal Hargovan v. Emperor 28 Bom. L.R. 1023 : A.I.R. 1927 Bom. 57, where Fawcett, J., with whom Madgavkar, J., agreed was of the view that in view of Section 412, Criminal Procedure Code, it was open to an accused person to raise the plea that, he had been wrongly convicted, even though he pleaded guilty in the trial Court, at the time when the matter comes up in revision before the High Court. This means that the provisions of Section 412 are not applicable in revision and the powers of the High Court are not at all curtailed or circumscribed by this section. The provisions of Section 412 have never been considered as forbidding the High Court in revision from exercising just as wide powers as if there had been an appeal and therefore the powers of a High Court in dealing with applications in revision where the accused has pleaded guilty are as ample as if an appeal on. the merits had been entertainable. (Vide Krishnachandra Sinha v. Emperor : AIR1943Pat313 .) As' already stated, I do not feel justified in accepting the plea of guilty of the accused circumstanced as they were at the time when the plea was made and recorded.

10. The next question is whether, after setting aside the orders of the lower Courts a re-trial should be ordered. It is not disputed that the petitioners have already undergone a period of 36 days in prison before they were released on bail. Is it necessary now to order a re-trial? Mr. N. Somasundaram urges that the interests of justice do not require further trial and the learned Public Prosecutor agrees that it is entirely left to my discretion to order a further trial or not. The usual procedure to be followed in cases where an accused person has been convicted on a trial which the appellate or revisional Court considers to be unfair, improper or irregular, is to set aside the conviction and order a fresh trial. But such need not always be the rule. In Bhase Singh v. Emperor (1917) 43 I.C. 109, Sir Edwards Chamier, C.J. and Sharfuddin, J., of the Patna High Court observed as follows:

The first order of the Sessions Judge and all subsequent proceedings must be set aside. The only question is whether further proceedings should be permitted. On behalf of the applicants stress is laid down on the fact that they have in various instalments served some thing over a month's rigorous imprisonment under one or other of the convictions recorded against them and we are urged on this account to disallow further proceedings. On behalf of the Crown it is urged that the case is one of some importance and that the applicants should not be acquitted merely on account of the irregularities which have taken place. It is said that there was a serious riot, but apparently no serious injury was done to any one. As already stated these proceedings have been pending since February, 1915. In view of this fact and in view also of the fact that the applicants have been in jail for a considerable period, we think that we ought not to allow further proceedings to take place. We, therefore, allow this application and we set aside the convictions of the appellants and direct that they be released.

This decision was followed in Girdhari v. Emperor where it is stated that in a case where, as a necessary consequence of setting aside the conviction on the ground that it was void there should be a re-trial, in the special circumstances of a particular case, viz., that the applicant has served out more than half the sentence, the proper thing would be to accept the prayer of the applicant that there should be no re-trial. Mukerji, J., in Tufail Ahmed v. Emperor A.I.R. 1925 All. 3012 in setting aside a conviction on the ground of its being contrary to the provisions of Section 239, Criminal Procedure Code, did not order a re-trial. That such procedure is also prevalent in Punjab is seen from Kundal Lal v. Emperor A.I.R. 1934 Lah. 648, where Sir Shadi Lal, C.J., after finding that the trial was vitiated by the fact that the accused was not examined under Section 342, Criminal Procedure Code, after the prosecution witnesses were recalled for cross-examination, considered it unnecessary to order a re-trial as the accused had already undergone the expense and worry of a trial and it was not desirable to expose him to any further trouble and expenses even though he may be guilty of an offence for which he has to be tried. I am in perfect agreement with the view enunciated in these pronouncements, even though the result of the setting aside, according to me, amounts only to a discharge.

11. Looking at the statute itself it is clear that the words of Section 423, Criminal Procedure Code, dealing with the powers of an appellate Court are sufficiently wide to cover a case like this. Learned Counsel also urges that in Section 423(1)(b) the words 'reverse the finding and sentence, and acquit or discharge the accused 'imply that an appellate Court or a Court of revision can refuse to order a fresh trial and thereby discharge the accused. It seems to me that when, once, an irregular or improper conviction has been set aside as void and a fresh trial is not ordered it amounts to a discharge of the accused.

12. For the reasons above stated, I am of the view that since nearly a year has elapsed from the date of the alleged offence and also on account of the period of sentence which the petitioners have already undergone it is unnecessary to order fresh trials. These petitions are therefore allowed and the convictions and sentences are set aside.